Guest Post: The Coalition for Integrity’s New SWAMP Index Highlights Progress and Shortcomings in U.S. State Ethics Systems

Today’s guest post is by Shruti Shah and Alex Amico, respectively President and Legal Fellow at the Coalition for Integrity, a civil society advocacy organization focused on corruption in the United States.

The unprecedented health crisis has demonstrated yet again the importance of strong ethics and transparency laws—not only on the national level, but at the sub-national level as well. In the United States, citizens are looking to their state legislators and governors to provide leadership, even as the large sums of government being spent on the pandemic response raise concerns about corruption and self-dealing. It is essential for the public to have confidence that public officials will adhere to the highest standards of ethics and integrity. One way to ensure this is with a strong state-level framework for ethics laws. To improve our understanding of the existing frameworks, and to highlight priority areas for improvement, the Coalition for Integrity recently released the second edition of the States With Anti-corruption Measures for Public employees (S.W.A.M.P.) Index. This report updates and expands on our 2018 report, with two new questions to better reflect the state of ethics regimes.

  • First, we asked whether state ethics agencies accept anonymous complaints and keep the identities of complainants confidential. Such anonymous reporting channels are essential for encouraging those with knowledge of wrongdoing to come forward.
  • Second, we asked if the state requires disclosure of the payors of political advertisements made through print, broadcast, and Internet-based media. (Current federal law on political advertisement transparency covers only advertisements in traditional print and broadcast media, not those on the Internet, and only covers candidates for federal office.)  There are thousands of state and local elected positions, from governors and judges to mayors and town council members, and collectively billions of dollars are spent on advertising for these races. The voters must know who is behind the advertisements, and to whom the politicians supported by those ads might feel beholden.

The 2020 report reveals improvement in the ethical framework in many states, partly as a result of our advocacy and that of state-based organizations.

  • North Dakota scored zero in 2018 because it had no ethics agency whatsoever; lacked any prohibitions or disclosure requirements for gifts; did not provide for transparency of those donating to campaigns or engaging in independent political spending; and did not require legislators (who typically hold outside jobs in the private sector) to disclose their clients. North Dakota now has an operational ethics agency which can impose penalties, and whose members are protected from removal without cause. North Dakota has also amended its laws to prohibit public officials from accepting gifts from lobbyists. However, there has not yet been improvement on other issues, such as campaign finance transparency.
  • New Mexico also scored low in 2018 due to its lack of an ethics agency and lack of adequate restrictions or disclosure requirements for gifts to public officials. As of January 1, 2020, a new ethics agency is now operational. This agency can hold public hearings and impose penalties, and its members are protected from removal without cause. Other issues of concern remain, however.

Despite these encouraging signs in these and a handful of other states, our report reveals that across the country, the legal safeguards in place to prevent and uncover ethical violations are often patchwork, with a great deal of room for improvement. For example, three states still do not have an ethics agency of any kind, and four more states have an ethics agency that lacks the power to impose sanctions for ethical violations. Even in those states that have an ethics agency, in a majority (26 of them), the agencies do not accept anonymous complaints and do not keep the identity of complainants confidential. There are also significant gaps in the substantive ethics rules. For example, 17 do not require public servants to disclose the gifts they receive.

This is not an exhaustive list of gaps in the ethical frameworks of states, nor would filling all those gaps create a perfect ethical landscape. But strong state ethics and transparency laws can do two things. First, such laws send the message that the state takes honest government seriously. Second, and more concretely, these laws can set an ethical floor higher than the current floor set by federal law. As state legislatures begin their new sessions in the coming year, they will have the opportunity to set agendas that prioritize strengthening ethics and transparency laws. They should seize this opportunity.

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